There is a growing assault on the practice of good medicine. The problem lies in the unrealistic desire to have no possibility of a bad outcome, along with low cost. That these two needs are largely at odds has been ignored for decades. There is no financial incentive for a physician to provide elective services to a high-risk patient—even if that physician is the best in the world at performing it.

A recent New England Journal of Medicine study[1] found that most physicians will be sued for malpractice during their career. By age 65, more than 75 percent of physicians in low-risk specialties (such as family medicine) and 99 percent of physicians in high-risk specialties (such as surgery) will have been sued.

One study reveals that the cost of medical malpractice in the United States is approximately $55.6 billion a year – $45.6 billion of which is spent on defensive medicine practiced by physicians seeking to stay clear of lawsuits.[2]

The problems associated with malpractice are known to include physician health issues. Medical Malpractice Stress Syndrome (MMSS)[3] is closely related to traumatic stress disorders, and includes feelings of intense shame, depression, anger, panic, and fatigue.

It is expected that lawsuits involving non-physician practitioners will increase as more of them are used and their scope of practice expands. Courts have held that a non-physician practitioner is an agent of the physician, and the physician can be held liable for their negligence, even if the physician never saw the patient.

The words “quality healthcare” were once defined as: “Doing the right thing, at the right time, in the right way, for the right person—and having the best possible results.” [4] However, in 2008, the government added to this definition by requiring specific detail and regulation.[5] The U.S. Department of Health and Human Services (DHHS) awarded a contract to the National Quality Forum (NQF) in 2009 to establish a portfolio of “quality measures” to “allow the federal government to more clearly see how and whether healthcare spending is achieving the best results.” [6]

CMS Quality Measures used by Medicare include more than 30 contributors, but the heaviest contributors are the Center for Medicare & Medicaid Services, National Committee for Quality Assurance, and the American Medical Association – Physician Consortium for Performance Improvement. CMS Quality Measures for all programs are “voluntary,” but physicians who do not participate are given a Medicare pay cut.[7]

CMS Quality Measures reported by physicians are meant to ensure steps are taken to minimize preventable problems and earlier detect problems before they become more costly. They focus heavily on conditions such as heart attacks, stokes, cancer, mental illness, and problems that primarily affect the elderly such as dementia and falls. In some cases, they report on the status of controlling chronic conditions, such as hypertension and diabetes.

Principally, CMS Quality Measures determine if providers were in compliance with screenings for listed problems, ordering tests, and the appropriate and effective use of medications. Therefore, “quality” is not specifically meant to be an indicator of the expertise and success rate of a physician treating problems they are trained to treat. For example, orthopedic surgeons who specialize in Sports Medicine can only report information related to their specialty on osteoporosis, osteoarthritis, and joint replacement—which might be an extremely small fraction of the patients seen. Therefore, to meet requirements for “quality,” these Sports Medicine surgeons must report on other non-orthopedic aspects of a patient’s health such as telling smokers to quit smoking, advising patients to lose excess body fat, and to have a pneumonia vaccination.

The survey of more than 1,000 physician practices in 2014 shows evidence that Medicare quality reporting programs are not reliable methods for achieving the stated goal of improved patient care, and may be worsening patient care by distracting staff and physicians from the primary purpose of the encounter.[8]

CMS Quality Measures attempt to take the path of other industries, such as manufacturing, to standardize quality assurance with activities and best-known processes. Althoguh best practices should be implemented with such things as medical equipment usage, preventive measures, medication dosages, and safety guidelines …these are ancillary to an active patient problem. Active problems rely on forces out of complete human control. This is because living beings are still not fully explainable by science. It is the art of practice—the interchange between training, experience, and intuition—that produces the most effective medical outcomes.

The potentially misleading use of the word “quality” in popular regulatory language does not consider the active problem or intuition of the treating physician. Sick, injured, and hurting patients need this. Quality, and best patient outcomes, can’t be effectively regulated because every patient and situation is, to some degree, unique. Only the treating physician is skilled at knowing what is needed.

Interesting Facts

CMS Quality Measures do not measure excellence in any particular medical specialty.

CMS Quality Measures do not hold patients directly accountable for their health.

[7] Programs: Physician Quality Reporting System (PQRS), Value Based Modifier program, and Meaningful Use in EHR under the HITECH Act with the clinical quality measure (CQM) components of Meaningful Use Part I and II.